In such cases the defendant's body is file
passive instrument of an external force, and the bodily motion
relied on by the plaintiff is not his act at all. So you may show
a justification or excuse in the conduct of the plaintiff
himself. But if no such excuse is shown, and the defendant has
voluntarily acted, he must answer [84] for the consequences,
however little intended and however unforeseen. If, for instance,
being assaulted by a third person, the defendant lifted his stick
and accidentally hit the plaintiff, who was standing behind him,
according to this view he is liable, irrespective of any
negligence toward the party injured.
The arguments for the doctrine under consideration are, for the
most part, drawn from precedent, but it is sometimes supposed to
be defensible as theoretically sound. Every man, it is said, has
an absolute right to his person, and so forth, free from
detriment at the hands of his neighbors. In the cases put, the
plaintiff has done nothing; the defendant, on the other hand, has
chosen to act. As between the two, the party whose voluntary
conduct has caused the damage should suffer, rather than one who
has had no share in producing it.
We have more difficult matter to deal with when we turn to the
pleadings and precedents in trespass.
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